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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
OCT 5 1998
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-4017
(D.C. No. 96-CR-276-G)
(D. Utah)
v.
MASON L. HARDY,
Defendant-Appellant.
ORDER AND JUDGMENT
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
**
Defendant Mason L. Hardy entered a conditional plea of guilty to a
three-count indictment charging him with possession of controlled substances
with intent to distribute, and aiding and abetting. Defendant reserved the right to
appeal the district courts denial of his motion to suppress evidence obtained
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
**
during a traffic stop. On appeal, Defendant argues that the search of his luggage
located in the trunk of the rental car he was driving was not consensual, not based
on reasonable suspicion, and not within the scope of a permissible inventory
search. He further maintains the evidence was not admissible under the inevitable
discovery doctrine. We affirm the district courts decision to deny Defendants
motion to suppress, but on a ground different than that upon which the district
court relied. See United States v. Bunner , 134 F.3d 1000, 1005 (10th Cir.),
petition for cert. filed April 24, 1998 (court of appeals may affirm on any ground
supported by the record).
I.
An Emery County, Utah sheriffs deputy stopped Defendant for speeding.
A computer check revealed that the automobile was rented and that neither
Defendant nor his passenger was authorized to drive it. The deputy contacted the
car rental company, which requested that the car be impounded. The rental
company also consented to a search of the car. When the deputy informed
Defendant that the car would be impounded and he and his passenger would be
driven to a bus station to continue their trip, Defendant became visibly upset and
began removing numerous items from the car, including a black bag from the
trunk. After Defendant placed the black bag on the pavement, he began to
remove articles from it when the deputy specifically asked him if the bag
contained any weapons. Promptly thereafter, the deputy ordered defendant to stop
reaching into the bag. Defendant then stepped away from the bag. Immediately
thereafter, the deputy looked in the bag and discovered the narcotics. The deputy
arrested Defendant. Defendant filed a motion to suppress, alleging the deputys
search of the black bag violated his Fourth Amendment rights.
After an evidentiary hearing, the district court ruled that the black bag
would have been opened and searched in the course of an inventory search of the
car. Thus, although the deputy inspected the contents of the bag before the
inventory search, the district court concluded that the evidence inevitably would
have been discovered.
See United States v. Haro-Salcedo
, 107 F.3d 769, 773
(10th Cir. 1997) (if evidence seized unlawfully would have been inevitably
discovered pursuant to a legal search, such evidence is admissible) (citing
Nix v.
Williams , 467 U.S. 431, 444 (1984)). Therefore, the district court ruled the
evidence admissible and denied Defendants motion to suppress.
In reviewing the district courts denial of a motion to suppress, we examine
the courts findings of fact for clear error, viewing all facts in the light most
Although Defendant lacks standing to object to any search of the car because he
did not prove he had lawful possession of it at the time of the stop,
e.g. , United
States v. Miller , 84 F.3d 1244, 1249-50 (10th Cir. 1996),
overruled on other
grounds by United States v. Holland , 116 F.3d 1353 (10th Cir. 1997), Defendant
has standing to challenge the search of his personal luggage.
See United States v.
Martinez , 983 F.2d 968, 973 (10th Cir. 1992).
1
favorable to the government, but review de novo the reasonableness of the seizure
and search. Haro-Salcedo , 107 F.3d at 771. We may affirm a district courts
holding on grounds not relied on by the district court, so long as the record is
sufficient to permit conclusions of law.
See Bunner 134 F.3d at 1005. Our
review of the record compels us to conclude that the deputys search of the black
bag was permissible for reasons other than an inevitable inventory search.
II.
A police officer may conduct a limited search for weapons if he possesses
a reasonable belief based on specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably warrant the officer in
believing that the suspect is dangerous and the suspect may gain immediate
control of weapons.
Michigan v. Long , 463 U.S. 1032, 1049 (1983) (quoting
Terry v. Ohio , 392 U.S. 1, 21 (1968)) (footnote omitted)). Where a police officer
has reason to believe that he is dealing with an armed and dangerous individual,
he may conduct a reasonable search for weapons for his own protection, even if
he does not have probable cause for arrest, and even if he is not certain that the
individual is armed.
See Terry , 392 U.S. at 27. The question is whether a
reasonably prudent officer drawing reasonable inferences from the facts in light
of his experience would believe his safety was in danger.
See id.
In this case, Defendant became visibly upset when the deputy informed him
that the car would be impounded. Defendant attempted to argue with the deputy
about impounding the car. He angrily tossed his belongings from the car onto the
pavement. At the hearing, the deputy testified that he was very concerned that
[Defendant] would become confrontational because he was becoming
increasingly agitated. R. Supp. Vol. V at 25. The deputy further testified that he
informed Defendant that for the deputys own safety he would check the black
bag for weapons.
See id. at 15.
The deputy was justifiably concerned for his safety because of Defendants
obvious distress and erratic behavior. As the Supreme Court stated in
Long , 463
U.S. at 1049, roadside encounters between police and suspects are especially
hazardous, and . . . danger may arise from the possible presence of weapons in the
area surrounding a suspect.
The black bag was within Defendants reach and
large enough to contain a weapon. The deputy properly restricted his search to
those areas to which [defendant] would generally have immediate control, and
that could contain a weapon.
Id. at 1050. Accordingly, we hold that the
deputys search of the black bag was reasonable because he was justifiably
concerned for his safety in checking the bag for weapons.
The judgment of the United States District Court for the District of Utah
is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
